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GLEASON v. SMOLINSKI—DISSENT

EVELEIGH, J., with whom ZARELLA, J., joins, dissenting. I respectfully dissent. Free speech may not

be invoked as a mere contrivance to shield tortious

conduct—directed at a private party on a purely private

matter—from liability. See Snyder v. Phelps, 562 U.S.

443, 455, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). In

my view, the majority accepts a contrived, post hoc

rationalization for the harassing conduct by the defendants, Janice Smolinski and Paula Bell,1 allowing a hollow invocation of the first amendment to the United

States constitution in order to protect conduct not

deserving of its aegis. I remain dedicated to safeguarding free speech, the hallmark of which ‘‘is to allow

free trade in ideas—even ideas that the overwhelming

majority of people might find distasteful or discomforting.’’ (Internal quotation marks omitted.) State v.

Krijger, 313 Conn. 434, 448, 97 A.3d 946 (2014). As the

trial court’s findings demonstrate, however, no protected ideas were intended to be expressed by the

defendants in continuously bombarding the plaintiff,

Madeleine Gleason,2 with flyers at her residence and

place of employment. Instead, the trial court found that

‘‘what is unacceptable here and worthy of a finding

of outrageous and extreme behavior is the continuing

aggravated nature of the [defendants’] activity in hounding [the plaintiff] where she lived and worked and

engaged in the ordinary activities of life. . . . Posters

of a missing person were placed so as to indicate to

[the plaintiff] that the very purpose of the poster campaign was to underline her supposed knowledge of the

criminal disappearance of [William Smolinski, Jr.

(Bill)].’’3

(Citation omitted.) The trial court further concluded: ‘‘[T]he [plaintiff’s] emotional distress . . . was

severe. She, in effect, felt she was being constantly

hounded—not as the result of a general effort by the

[defendants] to find their son and brother but part of

an effort to break her. . . . [T]he defendants would

not be satisfied unless [the plaintiff] admitted to what

they were convinced she knew and they pursued their

action with these purposes in mind.’’ Respectfully, only

by overturning these factual findings—and making a

new finding that ‘‘the targeted content and location

was consistent with the overarching public concern of

gaining information about Bill’s disappearance’’—can

the majority justify the conclusion that the defendants’

conduct merits the first amendment’s protections. The

majority does so notwithstanding the fact that, at oral

argument, the defendants conceded that they were not

asking this court to overturn any of the trial court’s

factual findings. See footnote 4 of this dissenting

opinion.

In light of the standard of review we must apply

today, which requires this court to search the record
to make sure there is no intrusion on first amendment

rights and to disturb the trial court’s factual findings

only when they are clearly erroneous, as well as the

defendants’ concession that they do not ask this court to

overturn the trial court’s factual findings, respectfully, I

cannot agree with the majority’s apparent sub silentio

disregard of the trial court’s crucial factual findings. If

it is unable to disregard the trial court’s critical factual

finding, the majority essentially concedes, through its

citation to State v. Carpenter, 171 P.3d 41 (Alaska 2007),

that such conduct is not protected speech. See id., 59

(‘‘[e]ven speech thatrelates to a matter of public interest

loses its protection and can give rise to an [intentional

infliction of emotional distress] claim if . . . it is

uttered with an intent merely to harass and with no

intent to persuade, inform, or communicate’’). Therefore, I would affirm the judgment of the Appellate Court

which concluded that, notwithstanding an independent

review of the whole record, the trial court’s factual

findings must stand, as they are amply supported by

the record and, therefore, unable to support the legal

conclusion that the defendants’ harassing conduct is

speech of public concern. See Gleason v. Smolinski,

149 Conn. App. 283, 293–94, 88 A.3d 589 (2014); id., 306

(‘‘[u]ltimately, the [trial] court credit[ed] the testimony

of the plaintiff . . . because although the defendants

testified that they did not engage in the conduct of

hanging missing person posters in order to harass the

plaintiff, other evidence presented . . . [showed] that

the defendants had a strong motive to act in the way

. . . alleged by the plaintiff’’ [internal quotation

marks omitted]).

The defendants did not intend to convey a protected

message through their intentional efforts to ‘‘hound’’

the plaintiff until she ‘‘broke.’’ No ideas were expressed

through the other harassing conduct that formed the

basis for the trial court’s judgment. The only message

a reasonable person could have gleaned from the defendants’ conduct, including their targeted placement of

posters, is one of harassment. Such tactics included

calling the plaintiff and threatening to kill her, calling

the plaintiff’s employer and the employer’s clients to

accuse the plaintiff of murder, following the plaintiff

and herfriends on the street and videotaping her, threatening the plaintiff and her friends in person, swearing

at and calling the plaintiff names such as ‘‘ho’’ and

‘‘slut’’ and ignoring admonishments by the police to

stop escalating matters before things got out of hand.

Shielding this harassing conduct, the sum of which

caused the plaintiff ‘‘to fear for her safety and that of

her child,’’ cannot be tolerated in a decent society and is

neither envisioned nor dictated by our first amendment

jurisprudence. For these reasons, I respectfully dissent.

I

INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS

I begin by discussing the majority’s opinion, first, by

noting the cases it cites in setting forth relevant first

amendment jurisprudence. I then discuss how, in my

view, the majority has overturned a crucial finding of

fact in orderto conclude that the present case involves a

violation of the first amendment. Because I respectfully

disagree with the majority’s disregard of this crucial

finding, I then conclude that the cases cited by the

majority, as well as additional case law, demonstrate

that there is no basis for finding a constitutional violation in the present case under the third prong of State

v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).

Specifically, I conclude that the defendants’ targeted

posters cannot be shielded from forming the basis of

liability because it is not speech of public concern.

The majority accurately sets forth the standard of

review and substantive law concerning speech of public

concern. See Snyder v. Phelps, supra, 562 U.S. 453–54

(‘‘Deciding whether speech is of public or private concern requires us to examine the content, form, and

context of that speech, as revealed by the whole record.

. . . As in other [f]irst [a]mendment cases, the court is

obligated to make an independent examination of the

whole record in order to make sure that the judgment

does not constitute a forbidden intrusion on the field

of free expression. . . . In considering content, form,

and context, no factor is dispositive, and it is necessary

to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was

said.’’ [Citations omitted; internal quotation marks omitted.]); State v. Krijger, supra, 313 Conn. 447 (‘‘[T]he

heightened scrutiny that this court applies in first

amendment cases does not authorize us to make credibility determinations regarding disputed issues of fact.

Although we review de novo the trier of fact’s ultimate

determination that the statements at issue [were not

protected by the first amendment], we accept all subsidiary credibility determinations and findings that are not

clearly erroneous.’’). In undertaking an independent

examination of the whole record to determine whether

the defendants’ targeted placement of posters constitutes speech of public concern, an inquiry concededly

made more difficult by the defendants’ failure to assert

entitlement to the first amendment’s protections at trial,

the majority begins by examining the content, context,

and form of the speech at issue.

As to the first of three factors to consider, the content

of the speech, the majority examines the ‘‘objective

nature of the speech at issue in the count of the complaint alleging intentional infliction of emotional distress, namely, the defendants’ extensive campaign of

missing person posters.’’ It notes the ‘‘well established’’

principle that ‘‘ ‘[t]he commission of crime, prosecutions resulting from it, and judicial proceedings arising
from the prosecutions . . . are without question

events of legitimate concern to the public . . . .’ Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.

Ct. 1029, 43 L. Ed. 2d 328 (1975).’’ After noting that the

posters seek information about Bill without specifically

referencing the plaintiff, the majority concludes that

the content of the communications relates to a matter of

public concern—namely, ‘‘matters pertaining to missing

persons.’’ I agree that the content of the posters, without

more, ostensibly relates to a matter of public concern.

The majority then discusses case law pertaining to

the second and third factors: the context and form of

the speech. As to context, the majority concedes that

‘‘the existence of preexisting animus between parties

might indicate circumstantially that a defendant is

dressing intentionally tortious conduct in the garb of

the first amendment,’’ though it explains that a motive

to harm ‘‘ ‘does not necessarily render the messages

conveyed . . . matters of purely private rather than

public concern.’ Spacecon Specialty Contractors, LLC

v. Bensinger, 713 F.3d 1028, 1038 (10th Cir. 2013).’’ The

cases cited by the majority conclude that, if the motive

to harm or harass is the sole basis for speech uttered

‘‘with no intent to persuade, inform, or communicate’’

on a protected matter, the first amendment’s protections do not apply because it is speech on a matter of

purely private concern. State v. Carpenter, supra, 171

P.3d 59. In my view, this jurisprudence applies precisely

to the present case. However, I acknowledge that, if an

improper motive to harm is not the sole basis for

uttering speech, and there exists a bona fide intent to

communicate on a protected matter—which, if condemned, the protected speech will have been improperly chilled—the speech remains protected by the first

amendment. See Spacecon Specialty Contractors, LLC

v.Bensinger, supra, 1037–39 and 1039 n.4 (documentary

inspired by news reports about company’s dubious

employment practices and alleged abuse of foreign

workers ‘‘not shown in a purely private context,’’ even

though it was product of some motivation to harm company’s reputation, because ‘‘[t]hat the film elucidated

those matters of public concern while simultaneously

advancing the [u]nion’s private interests does not render the matter entirely private’’). As acknowledged by

the majority, the inquiry into context, form, and motive

is fundamental to determining whether speech is of

public concern. Without such an inquiry, as the majority

notes, the first amendment risks becoming an all-purpose tort shield that is ‘‘used as a cloak or veil for

intentionally tortious conduct that is only tangentially

related to the claimed matter of public concern.’’ See

also Greene v. Tinker, 332 P.3d 21, 34–35 (Alaska 2014)

(rejecting argument that all ‘‘speech involving a matter

of public concern is inactionable’’ [internal quotation

marks omitted]).

The majority then turns to the factual findings of the
trial court to determine whether the context and form

of the targeted placement of posters demonstrates the

defendants’ bona fide attempt to communicate a message to the public or, rather, an attempt purely and

solely intended to harass the plaintiff. The majority

alludes to the trial court’s finding that the defendants’

targeted posters, were located primarily on, or adjacent

to, public roadways, were placed ‘‘not as the result of

a general effort by the [defendants] to find their son

and brother but [rather] part of an effort to break her’’—

uttered without an attempt to communicate a protected

matter to the public—and yet the majority concludes

that the targeted placement of posters ‘‘was consistent

with the overarching public concern of gaining information about Bill’s disappearance . . . .’’ Having apparently disregarded the trial court’s crucial factual

findings, the majority then concludes that ‘‘a substantial

portion of the defendants’ conduct . . . was, in fact,

protected by the first amendment.’’

The majority asserts that ‘‘[n]othing in the trial court’s

memorandum of decision indicates that it considered

the first amendment in deciding this case. We, of course,

do not fault the trial court for this. The first amendment

claims were not properly preserved and must be

reviewed on appeal pursuant to Golding.’’ See footnote

21 of the majority opinion. I disagree. A review of the

trial court opinion reveals that the trial court did consider free speech issues when deciding this matter.

First, the trial court explained that ‘‘the court understands the comments in [Petyan v. Ellis, 200 Conn. 243,

254, 510 A.2d 1337 (1986)], to the effect that certain

conduct which would otherwise be considered extreme

and outrageous can be privileged. The [defendants] cannot be faulted for bringing their concerns and suspicions to the attention of the police and even the media.

Nothing, for example, has been introduced into evidence that the . . . relationship [between Bill and the

plaintiff] did not break down under circumstances

involving a rival for [the plaintiff’s] affection and the

[defendants] concede that Bill . . . made a threatening

[tele]phone call to the rival the day before [Bill] disappeared. The nature of that person’s business—long-haul

trucking—and the occupation of [the plaintiff’s] now

deceased son as a grave digger are not disputed and it

would be an unacceptable restriction on free speech

and even hamper police investigations if people did not

have a right to bring such facts to the police’s or even

[the] public’s attention. In fact, the [defendants] are to

be admired for their persistent efforts to bring [Bill’s]

disappearance and their complaints to the highest levels

of state government and the federal authorities. One

cannot help sympathizing with their pain and frustration.’’ (Emphasis added.) Furthermore, the trial court

also reasoned as follows: ‘‘The foregoing also leads the

court to conclude that the third and fourth element[s]

of the tort have been met. [The plaintiff and other wit-
nesses] testified to the emotional distress caused [to

the plaintiff] by the activities of the defendants. The

enumerated facts and findings made by the court on

those facts lead to the conclusion that the actions of the

defendants caused [the plaintiff] emotional distress—in

fact they were meant to do so. Also, it is not surprising

that, given the facts, the emotional distress caused [to

the plaintiff] was severe. She, in effect, felt she was

being constantly hounded—not as the result of a general effort by the [defendants] to find their son and

brother but part of an effort to break her.’’ (Emphasis added.)

The majority explains that it does ‘‘not suggest that

the trial court was completely unaware that the general

subject matter of this case has first amendment implications. The dissent’s discussion of the trial court’s references to the defendants’ free speech rights focuses,

however, on conduct whose propriety and protected

nature is not at issue in this appeal, namely, the defendants’ rights to speak to law enforcement authorities

or the public about details surrounding Bill’s disappearance. There is nothing in the trial court’s opinion indicating that it considered the first amendment

implications of the defendants’ flyer campaign, which

were a substantial basis for the plaintiff’s intentional

infliction of emotional distress claim.’’ See footnote 21

of the majority opinion. I disagree. First, it is notreasonable to assume that the trial court could be aware ‘‘that

the general subject matter of this case has first amendment implications’’ and consider it in regard to some

of the defendants’ conduct, but not the conduct involving the posters. Second, the trial court’s statement that

‘‘it would be an unacceptable restriction on free speech

and even hamper police investigations if people did not

have a right to bring such facts to the police’s or even

[the] public’s attention’’ belies the majority’s reading

of the trial court’s memorandum of decision.(Emphasis

added.) A reasonable reading of the trial court’s reference to the public’s attention would include the defendants’ placement of posters. Furthermore, contrary to

the majority’s claim that I am addressing an issue not

briefed by the parties—namely, whether the Appellate

Court properly applied Golding review to these

claims—my focus on this language in the trial court’s

memorandum of decision regarding free speech is in

response to the majority’s explicit statement that

‘‘[n]othing in the trial court’s memorandum of decision

indicates that it considered the first amendment in

deciding this case.’’ See footnote 21 of the majority

opinion.

I respectfully disagree with the majority’s apparent

disregard of the factual findings and credibility determinations of the trial court. First and foremost, at oral

argument, the defendants conceded that they were not

asking this court to overturn the trial court’s factual

findings as clearly erroneous.4 Having conceded as
such, and despite Golding review and an ‘‘independent

examination’’ of the whole record, I respectfully disagree that the defendants—or the majority—are able

to show that the first amendment’s protections apply

in light of these crucial findings. But notwithstanding

the defendants’ concession, the majority fails to

acknowledge, and implicitly overturns, the trial court’s

finding that the defendants’ targeted placement of posters served no purpose beyond harassing the plaintiff

and expressed no protected message. Respectfully, disregarding this crucial finding does not square with the

standard of review the majority purports to apply,

which would require it to overturn as clearly erroneous

the trial court’s credibility determination that the defendants’ contrived justification for their harassing conduct was, in fact, unbelievable. The majority is unable

to find clear error and, absent clear error as to this

crucial finding, therefore, the majority’s conclusion that

the defendants’ harassing conduct is of public concern

cannot stand in light of our first amendment jurisprudence.

Assuming that the majority chooses to overturn—

without saying so and notwithstanding the defendants’

concession—as clearly erroneous the trial court’s factual finding that the defendants’ sole purpose in placing

posters nearthe plaintiff’s home and work was to harass

her, a review of the record is warranted. As noted by

the majority, the standard of review requires deference

to the factual findings of the trial court, especially credibility determinations regarding disputed issues of fact,

unless clearly erroneous. ‘‘A finding of fact is clearly

erroneous when there is no evidence in the record to

support it . . . or when although there is evidence to

support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks

omitted.) State v. Krijger, supra, 313 Conn. 446. Only

after review of the trial court’s subsidiary credibility

determinations and findings of fact for clear error may

this court review, de novo, ‘‘whether the defendants’

conduct, as found by the trial court, was subject to first

amendment protection.’’ Id. Even Golding review, as

the majority notes, ‘‘does not permit us to disregard

the trial court’s findings of historical fact resolving conflicting evidence in favor of our own view of the factual

record, or to make our own findings when the record

reveals conflicting orinconclusive evidence on a factual

point.’’ See footnote 15 of the majority opinion. In my

view, however, the majority has done just that.

The majority acknowledges, in a footnote, the following subordinate factual findings undergirding the trial

court’s critical finding that the defendants’ sole purpose

in placing posters near the plaintiff’s home and work

was to intimidate and harass the plaintiff until she

broke: that posters placed in othertowns were generally

well spaced out and yet posters were placed outside
of the plaintiff’s place of employment and saturated

‘‘every nook and cranny’’ of her bus route; that there

were a large quantity of posters on one pole outside

the plaintiff’s house, that were replaced when taken

down, and yet posters were placed nowhere else on

the street; that the placement of posters continued for

months and followed the plaintiff as she changed residences to avoid them; and that there was no evidence

that the placement of posters along the plaintiff’s bus

route was necessary to aid in locating Bill. See footnote

20 of the majority opinion. The majority also acknowledges other factual findings—though elsewhere in its

opinion and, in my view, absent from its analysis regarding the posters—as to additional ‘‘confrontational and

harassing’’ conduct by the defendants that formed the

basis of the effort to ‘‘break’’ the plaintiff and that very

well may justify a judgment for intentional infliction of

emotional distress upon remand: a confrontation at a

police station in the town of Woodbridge during which

the defendants threatend to kill the plaintiff; incidents

during which the defendants called the plaintiff offensive names, followed her, videotaped her activities, and

told various people that the plaintiff was a ‘‘murderer’’

or otherwise involved in Bill’s disappearance. The

majority even credits the defendants’ representation

that it was the actions of the plaintiff in tearing down

the posters—in allegedly thwarting the defendants’

legitimate efforts—that caused the defendants to target

her, again, contrary to the trial court’s finding that ‘‘it

cannot be deduced from the evidence and testimony

that the concentration of poster activity where [the

plaintiff] lived and worked only commenced in reaction

to [the plaintiff’s] tearing down posters in that area.

. . . [T]he poster hanging activity in towns where [the

plaintiff] worked and lived was apparently done from

the beginning of the poster hanging activity.’’5 These

subsidiary factual findings in the record provide ample

support forthe trial court’s critical finding that the ‘‘sole

purpose’’ of the defendants’ placement of posters near

the plaintiff’s home and work was done for the purpose

of ‘‘intimidating and harassing the plaintiff.’’ In my view,

the majority cannot ‘‘acknowledge’’ these subsidiary

factual findings without upholding the crucial finding

it has overturned.

Under our standard for clear error and in light of the

ample support in the record, therefore, the majority

could only have overturned the trial court’s critical finding if it had been left with the definite and firm conviction that a mistake had been committed, a conclusion

the majority has not made. And if the majority made

such a conclusion, it could only have done so by its

further disregard of additional relevant facts found by

the trial court: that Janice Smolinski admitted to ‘‘intentionally saturating all the areas where she knows [the

plaintiff] frequents ‘because she was trying to break

her’ ’’ so that the plaintiff would admit her involvement
in Bill’s disappearance; that both defendants admitted

to the police, the Waterbury Observer, and other parties

their plans to harass the plaintiff and her friend until

one of them broke down and gave them information;

that Janice Smolinski admitted to the Waterbury

Observer that these actions could land her in jail; and

that the poster campaign was part of—and not even

the exclusive means of—a larger effort to intimidate

the plaintiff, intended to, and in fact becoming, the

cause of the plaintiff’s severe emotional distress. In

light of the defendants’ admission that the posters were

deliberately placed to affect only the plaintiff—a person who undeniably already understood that the defendants sought information about Bill’s whereabouts—I

would uphold the trial court’s finding that this conduct

did not convey a message to the public or advance

legitimate speech.

Most importantly, the trial court, having had the

opportunity to view the demeanor of the parties and

determine their credibility, clearly resolved the conflict

in the parties’ testimony to make its crucial factual

finding. The trial court characterized the parties’ conduct as a ‘‘ ‘cat and mouse game’ ’’ for which ‘‘both

sides can be faulted for the antagonistic activity that

developed.’’ Additional review of the trial transcript

reveals just how deep the acrimony between the parties

ran—at one point during the plaintiff’s testimony,

Janice Smolinski interrupted the plaintiff stating: ‘‘Stop

it. . . . Stop it. It’s not all about you, it’s not. Stop.’’

The court took a recess after this outburst, after which

the plaintiff’s attorney noted that, during the recess, a

family member of the defendants ‘‘directed an obscenity’’ at the plaintiff. The trial court then attempted to

calm the parties, though it acknowledged that ‘‘emotions are boiling . . . .’’ A fair review of the record

cannot, without overturning the trial court’s determination as to the defendants’ credibility, lead to the definite

and firm conviction that a mistake has been committed—instead, the record indicates the turn of a blind

eye toward the facts that the majority should have considered. Contrary to its statement that Golding review

does not permit it to do so, the majority has made

several of its own factual ‘‘findings when the record

reveals conflicting orinconclusive evidence on a factual

point.’’ See footnote 15 of the majority opinion.

To the extent the majority might have come to its

conclusion by ‘‘[performing] a fresh examination of crucial facts under the rule of independent review’’; (internal quotation marks omitted) DiMartino v. Richens,

263 Conn. 639, 662, 822 A.2d 205 (2003); it has not stated

how it performed this examination without disregarding

credibility determinations made by the trial court,

which our first amendment jurisprudence does not

allow us, and the defendants have not asked us, to do.

See State v. Krijger, supra, 313 Conn. 447. The majority

suggests that a proper application of the rule of indepen-
dent review would involve a species of ‘‘the clearly

erroneous standard of review [while] tailoring [the

review] to the specific trial court determinations at

issue . . . .’’ But as the Appellate Court noted, it is

unclear how that standard permits us to overcome the

trial court’s finding that the defendants’ sole intent was

to harass without discounting the trial court’s consideration of the parties’ credibility as to this crucial issue

of fact. See Gleason v. Smolinski, supra, 149 Conn. App.

306 (‘‘[u]ltimately, the court credit[ed] the testimony of

the plaintiff . . . because although the defendants testified that they did not engage in the conduct of hanging

missing person posters in order to harass the plaintiff,

other evidence presented . . . [showed] that the

defendants had a strong motive to act in the way . . .

alleged by the plaintiff’’ [internal quotation marks omitted]). This crucial finding must stand.

If, therefore, the majority could not have overturned

as clearly erroneous the factual finding that the defendants’ sole intent in targeting posters at the plaintiff

was to harass her until she broke, given its citation to

relevant case law, the majority essentially concedes

that its conclusion cannot stand. See State v. Carpenter,

supra, 171 P.3d 59 (‘‘[e]ven speech that relates to a

matter of public interest loses its protection and can

give rise to an [intentional infliction of emotional distress] claim if . . . it is uttered with an intent merely

to harass and with no intent to persuade, inform, or

communicate’’). No other cases cited by the majority

support the conclusion that the defendants’ conduct in

the present case is speech of public concern. Indeed,

no case has afforded the first amendment’s protections

to speech of facially acceptable content expressed in

a traditional public forum, where the speech: (1) is

uttered in a context that consists of the sole and exclusive desire to harm the plaintiff and, concomitantly, no

intent to convey a protected idea or message to the

public;(2) is inextricably linked to intimidating conduct

that borders on harassment of a private party on a

purely private matter; and (3) if condemned, does not

chill protected speech or pose a risk of self-censorship.

To conclude as it has, the majority has, in effect, applied

the first amendment as an all-purpose tort shield ‘‘used

as a cloak or veil for intentionally tortious conduct that

is only tangentially related to the claimed matter of

public concern.’’ See Greene v. Tinker, supra, 332 P.3d

34–35. In my view, the majority’s citation to Spacecon

Specialty Contractors, LLC v. Bensinger, supra, 713

F.3d 1039, and State v. Carpenter, supra, 171 P.3d 59,

as discussed previously in this opinion, are sufficient

to establish that the defendants’ speech is not of public concern.

My review of additional first amendment case law

also supports my conclusion. Keene v. Cleaveland,

N.H. , 118 A.3d 253 (2015), is instructive, containing

facts most similar to those in the present case and
differing only by factual findings regarding the legitimacy of the actors’ intent to express protected speech

to the public and the extent to which protected speech

would be chilled if the conduct were condemned. In

Keene, the Supreme Court of New Hampshire confronted a claim that the first amendment protects conduct intended to harass parking enforcement officers

issuing parking tickets. Id., 255. The facts of Keene are

set forth in the majority opinion and, therefore, need

not be repeated here. See footnote 22 of the majority

opinion. I emphasize, however, that in conceding that

the content and locational context favored protection,

the plaintiff in that case, the city of Keene, argued that

certain other facts indicated that the conduct at issue

constituted ‘‘ ‘significantly harassing behavior underthe

guise of political expression,’ and, therefore, [rendered

the conduct] not constitutionally protected.’’ Keene v.

Cleaveland, supra, 258. Specifically, the plaintiff in that

case argued that aspects of the defendants’ conduct,

namely ‘‘following closely, chasing, running after,

approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity’’

had a tortious impact on the parking enforcement officers. (Internal quotation marks omitted.) Id., 260. The

New Hampshire Supreme Court disagreed that this

impactrendered the speech a matter of private concern,

highlighting the fact that the defendants ‘‘intended [this

conduct] to draw attention to the [c]ity’s parking

enforcement operations and to persuade the [parking

enforcement officers] to leave their positions.’’(Emphasis added.) Id., 261. Because the challenged conduct

was the vehicle for the defendants’ bona fide political

protest, imposing liability for the conduct would

infringe upon the defendants’ right to free speech,

undermine the free and robust debate of public issues,

and pose the risk of a reaction of self-censorship on

matters of public import. Id.; see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409,

73 L. Ed. 2d 1215 (1982) (first amendment protects

rights of individuals to engage in public protest, even

if protest activity causes economic harm, for purpose of

influencing societal or governmental change, because

speech ‘‘does not lose its protected character . . . simply because it may embarrass others or coerce them

into action’’).

The defendants’ use of posters touches on the same

first amendment concerns as the defendants’ conduct

in Keene. Specifically, the content of the speech related

to a matter of public concern, the activities generally

occurred in traditional public fora, and the context of

the speech involved types of harassment. But the critical difference between the two cases, as mentioned

previously, is the factual finding regarding the actors’

intent to express a message or idea traditionally protected by the first amendment to the public.

In Keene, the defendants engaged in harassing activ-
ity that, as a matter of fact, was inextricably linked to,

and intended to advance, their protected message to

the public—a message protesting the government. Such

speech is worthy of the strongest first amendment protections. See State v. Krijger, supra, 313 Conn. 450

(reiterating the ‘‘ ‘profound national commitment to the

principle that debate on public issues should be uninhibited,robust, and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials’ ’’), quoting

New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84

S. Ct. 710, 11 L. Ed. 2d 686 (1964); see also State v.

Peter, 798 N.W.2d 552, 553 (Minn. App. 2011) (reversing

conviction for disorderly conduct for protesters outside

fur store because ‘‘their statements and conduct did

not rise to the level of ‘fighting words,’ and their loud

chanting and yelling were ‘inextricably intertwined’

with their political protest, which was protected by the

[f]irst [a]mendment’’).

By stark contrast, in the present case, the trial court

found that the defendants’ targeting of the plaintiff, in

the context of their other intimidating activities, was

not a bona fide expression to the public of a message

that the first amendment protects. Specifically, the trial

court found that ‘‘the poster campaign in areas where

[the plaintiff] lived and worked [was] part of a larger

effort to intimidate her. . . . [The plaintiff] was being

constantly hounded—not as the result of a general

effort by the [defendants] to find their son and brother

but part of an effort to break [the plaintiff]. . . . [The

defendants] pursued their action with these purposes

in mind.’’ See Connick v. Myers, 461 U.S. 138, 148 n.8,

103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (‘‘[A] questionnaire not otherwise of public concern does not attain

that status because its subject matter could, in different

circumstances, have been the topic of a communication

to the public that might be of general interest. [W]hether

[the utterances] . . . could be matters of public concern is beside the point—it does not answer whether

this [utterance] is such speech.’’ [Emphasis in original.]). The defendants’ conduct might have tangentially

involved protected speech, but the other actions of the

defendants, made transparent by their own admissions

as to their purpose to harass, formed the basis of the

trial court’s credibility determination that this conduct

was merely and solely tortious conduct directed at a

private party in an antagonistic, private dispute. See

People v. Little, Docket No. 4-13-1114, 2014 WL 7277785,

*7 (Ill. App. December 22, 2014) (conviction for stalking

affirmed, statute not unconstitutionally overbroad and

properly applied to defendant’s conduct because ‘‘preexisting relationship and conflict [between the defendant and his wife] strongly suggest [the] defendant is

attempting to mask an attack on [his wife] over a private

matter as a protest of a matter of public concern’’ and

because ‘‘nothing in the evidence suggests that in driv-
ing by [the women’s shelter], [the] defendant intended

to peacefully protest a matter of public concern in a

public forum . . . [or] ‘convey his position on abortion

utilizing a method designed to reach as broad a public

audience as possible’ ’’). As the trial court found, nothing in the evidence suggests that, in hounding the plaintiff and placing posters near every place she frequented,

the defendants intended to advance a message—a message that was found to have been protected in the defendants’ other actions in other contexts—to the public.

Rather, this conduct was ‘‘not as the result of a general

effort by the [defendants] to find their son and brother,

but [rather], part of an effort to break [the plaintiff].’’6

(Emphasis added.)

The comparison between the protected speech in

Keene and the unprotected speech in the present case

is reinforced when one examines whether a judgment

for money damages would run the risk of chilling protected speech. In Keene, a judgment against the defendants would mean that the defendants, believing as they

did that the government’s actions in issuing parking

tickets should not be tolerated and hoping to broadcast

this belief to the public, would be penalized for expressing this message. It would also mean that future protesters of governmental action in New Hampshire would

think twice and potentially self-censor before launching

an unpleasantly sharp attack on their government or

its officials. By contrast, the judgment against the defendants in the present case does not pose these risks: the

judgment does not penalize the defendants for searching for Bill or bringing their grievances aboutthe authorities’ lack of diligence to public light, undeniably

protected conduct. The trial court concluded that these

bona fide efforts—the efforts in publicizing the case on

television and in the Waterbury Observer, the efforts

to hang posters in multiple states in a manner actually

intended to yield tips as to Bill’s whereabouts and to

advance their cause—merited admiration and encouragement. The trial court stated that ‘‘it would be an

unacceptable restriction on free speech and even hamper police investigations if people did not have a right

to bring such facts to the police’s or even [the] public’s

attention.’’ The trial court further concluded that ‘‘the

defendants [cannot] be held accountable [for] . . .

[t]he publicity about the case . . . [and] had a right to

voice what they felt were valid criticisms of the way

law enforcement authorities handled the investigation

and their pleas for help in order to try to ensure that

the intensity of the investigation would be increased

and relevant areas of inquiry would be pursued. This

is a commonly exercised right of citizens in dealing

with what they consider to be unresponsive authorities

and a crucial aspect of preserving a functioning

democracy.’’

As the trial court found and the Appellate Court

affirmed, however, expressing criticism of the police
or engaging in the public search for Bill was not the

defendants’ intent when they targeted the plaintiff with

posters. See Gleason v. Smolinski, supra, 149 Conn.

App. 306. Affirming the judgment against the defendants

would penalize them only for going ‘‘beyond the acceptable parameters’’ of a decent society and engaging in

opprobrious behavior wholly divorced from any protected message. Instead of chilling speech or posing

any risk of self-censorship, the judgment prevents the

actions of these defendants—and thereby future individuals—from targeting, intimidating, harassing, and

intentionally inflicting emotional distress upon any

person they believe to have previously engaged in the

commission of a crime. Affirming the judgment would

not require the defendants to take down all of their

posters or cease their search for Bill; it is consistent

with the protections afforded by the first amendment

while vindicating our state’s ‘‘legitimate interest in

redressing wrongful injury’’; Gertz v. Robert Welch,Inc.,

418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974);

by reaching ‘‘no farther than is necessary to protect the

legitimate interest involved.’’ Id., 349.

Affirming the judgment of the trial court is also consistent with Snyder, from which the majority quotes

extensively and upon which the majority appears to

rely. In my view, reliance on Snyder is not apt. As in

the present case, the content of the speech in Snyder

related to a matter of public concern—a viewpoint critical of the government. But contrary to the present case,

the context of the speech revealed that the defendants

actually intended to convey this viewpoint to the public

by way of its picketing. In Snyder, the United States

Supreme Court concluded that the defendants ‘‘had

been actively engaged in speaking on the subjects

addressed in its picketing long before it became aware

of [Marine Lance Corporal] Matthew Snyder, and there

can be no serious claim that [the defendants’] picketing

did not represent its ‘honestly believed’ views on public

issues.’’ Snyder v. Phelps, supra, 562 U.S. 455. ‘‘There

was no [preexisting] relationship or conflict between

[the defendants] and [the plaintiff] that might suggest

[the defendants’] speech on public matters was

intended to mask an attack on [him] over a private

matter.’’ Id. Moreover, the plaintiff’s distress in Snyder

was not caused by harassing conduct; instead, ‘‘any

distress occasioned by [the defendants’] picketing

turned on the content and viewpoint of the message

conveyed, rather than any interference with the funeral

itself.’’ Id., 457. In other words, it was the content of

the speech—the honestly believed, protected message

that the defendants in Snyder wished to communicate

to the public—that caused the distress, not the context

in which the speech occurred.7

By contrast, the distress experienced by the plaintiff

in the present case resulted solely from the context in

which the speech occurred—the relentless hounding
of the plaintiff where she lived and worked—not the

content of the posters. See Watts v. Chittenden, 305

Conn. 575, 605, 22 A.3d 1214 (2011) (‘‘it is the repetition

of the misconduct that makes it extreme and outrageous’’); see also A. Caplan, Free Speech and Civil

Harassment Orders,’’ 64 Hastings L.J. 781, 838 (2013)

(‘‘[T]hroughout much civil harassment litigation . . .

the petitioner’s emotional state is often a reaction to the

content of [the]respondent’s speech. The constitutional

evil of content discrimination can often be avoided in

practice by recasting allegations about content as allegations about unwanted contact. Ending unconsented

contact [regardless of the content that may be conveyed

during the contact] is a permissible exercise of the

government’s power to regulate, on a content neutral

basis, the noncommunicative aspects of expressive

activity.’’). The acrimonious, preexisting relationship

between the parties from the very start, the abundance

of other harassing conduct, and especially the defendants’ admissions that their actions were meant to

hound the plaintiff until she broke, indicate no honestly

believed, protected message intended to be conveyed

to the public, but rather a relentless, private attack on

the plaintiff to vindicate a perceived wrong.

In addressing the possibility that speech could be

chilled by affirming the judgment for intentional infliction for emotional distress in Snyder, the United States

Supreme Court recognized that, by condemning the

defendants’ speech, the jury could have imposed liability on the basis of their ‘‘tastes or views, or perhaps

. . . their dislike of a particular expression . . .

[which would pose] a real danger of becoming an instrument for the suppression of . . . vehement, caustic,

and sometimes [unpleasant] expression.’’ (Citation

omitted; internal quotation marks omitted.) Snyder v.

Phelps, supra, 562 U.S. 458. By contrast, condemnation

of the defendants’ harassing conduct in the present case

does not pose any risk of having resulted from differing

tastes or views on what the posters conveyed or the

ideas they espoused, nor does it pose a risk of suppressing unpleasant expression. It merely imposes liability for the ‘‘continued, aggravated nature of the

defendants’ activity in hounding [the plaintiff] where

she lived and worked’’ for the sole purpose of intimidating and harassing the plaintiff and ‘‘not as the result of

a general effort by the [defendants] to find [Bill].’’

In light of the foregoing, I would uphold the critical

factual findings of the trial court which, in the absence

of any case law to the contrary8 and as essentially conceded by the majority by its citation to State v. Carpenter, supra, 171 P.3d 58–59, cannot reasonably render

the defendants’ conduct to be speech of public concern.

See id., 56–57 (‘‘We distinguish between speech, however crude . . . directed at persuading the ultimate target to change her mind about a matter of public concern,

and speech intended merely to harass or cause others
to harass the target. Speech of the latter sort is not

entitled to [f]irst [a]mendment protection.’’). To the

extent the majority would conclude that the defendants

could properly harass the plaintiff to persuade her to

divulge information about her involvement in Bill’s disappearance, the content of this ‘‘communication’’

ceases to be of public concern because it no longer

advances any interest in informing the public about the

commission of crime; see Cox Broadcasting Corp. v.

Cohn, supra, 420 U.S. 492; but rather amounts to drawing out a confession from a private citizen by way of

tortious conduct. I would affirm the judgment of the

Appellate Court, which concluded that the defendants

have not satisfied the third prong of Golding review

because they have not established any constitutional

violation. See Gleason v. Smolinski, supra, 149 Conn.

App. 293–95.

But even assuming, arguendo, that the defendants’

targeted posters represented speech of public concern

and that the defendants established a constitutional

violation underthe third prong of Golding,Irespectfully

disagree with the majority’s conclusion that the fourth

prong of Golding requires a remand because of the

‘‘apparent significance of the flyer campaign to the trial

court’s finding on her intentional infliction of emotional

distress claim.’’ In my view, the constitutional violation,

if any, is harmless beyond a reasonable doubt. The

majority has conceded the existence of extensive and

continuous ‘‘confrontational and harassing behavior,

including calling the plaintiff offensive names, following

her, and videotaping her activities’’ that, as detailed

previously in this dissenting opinion, is a sound, independent basis for the judgment. Including the other

relevant facts that, in my view, the majority should have

considered—such as the fact that the plaintiff received

threatening telephone calls from Bell, causing the plaintiff to fear for her safety and that of her child—any

constitutional violation is harmless beyond a reasonable doubt.9

Like the Appellate Court, I would conclude that the

defendants did not satisfy the third prong of Golding

because they have not established a violation of their

first amendment rights. See Gleason v. Smolinski,

supra, 149 Conn. App. 293–95.

II

DEFAMATION

I next turn to the majority’s discussion of the plaintiff’s claim of defamation. I agree with the majority’s

analysis and conclusion that the three statements at

issue—private accusations to private individuals that

the plaintiff was a ‘‘murderer’’—were defamatory statements of fact, not of opinion. I respectfully disagree,

however, with the remainder of the majority’s analysis,

in particular, its conclusion that the statements at issue
constitute speech of public concern meriting the protections of the first amendment. In my view, a proper

inquiry into the content, context, and form of these

private accusations leads to the conclusion that the first

amendment’s protections are unwarranted. Without

analysis, the majority concludes that ‘‘the parties do

not dispute for purposes of the defamation claim that

the oral statements at issue, which pertain to the plaintiff’s role in Bill’s death or disappearance, implicate a

matter of public concern for first amendment purposes.’’ I respectfully disagree.

Contrary to the precedent to which it cites,10 the

majority fails to conduct any analysis of the content,

context, and form of the defamatory utterances at issue,

affording them the first amendment’s protections without inquiry. See Snyder v. Phelps, supra, 562 U.S. 453

(‘‘[d]eciding whether speech is of public or private concern requires us to examine the content, form, and

context of that speech’’ [emphasis added; internal quotation marks omitted]). Failure to make this inquiry is

inconsistent with a de novo standard ofreview, notwithstanding that the present case comes to us on Golding

review or with less than clear briefing. See State v.

Krijger, supra, 313 Conn. 446 (‘‘[A]n appellate court is

compelled to examine for [itself] the . . . statements

[at] issue and the circumstances under which they

[were] made to [determine] whether . . . they . . .

are of a character [that] the principles of the [f]irst

[a]mendment . . . protect. . . . This rule of independent review was forged in recognition that a[n] [appellate] [c]ourt’s duty is not limited to the elaboration of

constitutional principles . . . . [Rather, an appellate

court] must also in proper cases review the evidence

to make certain that those principles have been constitutionally applied.’’ [Citation omitted; internal quotation

marks omitted.]).

Instead of performing its own independent review of

the whole record, the majority merely cites to three

cases to support its position that the statements are of

public concern because they ‘‘pertain to the plaintiff’s

role in Bill’s death or disappearance . . . .’’ None of

the three cases created a per se rule that any accusation

of crime garners the first amendment’s protections.

Instead of creating per se rules, the court in each of

those cases engaged in its own requisite inquiry into

content, context, and form of the defamatory statements to come to a legal conclusion that the statements

merited the first amendment’s protections. As for their

ultimate legal conclusions, all of the cases predicated

the first amendment’s protections on bases not applicable to the present case; see footnote 8 of this dissenting

opinion; Holloway v. American Media, Inc., 947 F.

Supp. 2d 1252, 1261 n.8 (N.D. Ala. 2013) (article published involved public figure); Miles v. Ramsey, 31 F.

Supp. 2d 869, 875 (D. Colo. 1998) (article published was

matter of public concern because murder was national
‘‘media spectacle’’); Shoen v. Shoen, 292 P.3d 1224,

1229–30 (Colo. App. 2012) (statements were made on

television program ‘‘during a two-hour interview, in

which—among other things—[the speaker] criticized

the quality and completeness of the [s]heriff’s investigation’’ and therefore ‘‘related to a matter of public concern because they addressed [the speaker’s] views

about the adequacy of the investigation by public law

enforcement officers when unanswered questions

remained’’). Though the content of the speech in those

cases might have touched on a matter of public concern,

the context of the speech involved attempts to convey a

message to the public, vastly differing from the intended

audience—private individuals—in the present case.

I would conclude, instead, that Sartain v. White, 588

So. 2d 204 (Miss. 1991), is instructive. In Sartain, neighbors were embroiled in a terrible conflict over a period

of years. Id., 205. The defendants alleged that the plaintiff, a woman with arguable mental capacity, accused

them, verbally in public and in letters to third parties,

of various criminal acts including murder. Id., 206. After

the defendants prevailed on their claim for defamation,

the plaintiff appealed, citing to Gertz and claiming the

protections of the first amendment in accusing the

defendants of various crimes. Id., 213. The Supreme

Court of Mississippi concluded that only if the plaintiff’s

accusations amounted to speech of public concern

would the first amendment have been applicable. Id.

After detailing the plaintiff’s borderline delusional

behavior, the court discussed the content, context, and

form of the accusations, concluding as follows: ‘‘The

content of the debate in question involves whether the

[defendants] are murderers, robbers and terrorists. The

form of the debate involved various pleadings, letters

to city officials, and oral tirades within a neighborhood.

The context of the debate involves a dispute between

a respectable family as the accused and an accuser

with a rather notorious past. Though accusations of

this nature generally are a matter of public concern, in

this context and emanating from this source, we find

that they are not in this case.’’11 Id.

Assuming, arguendo, that the defendants’ accusations in the present case touched on a matter of public

concern, which is far from a settled proposition; see

footnote 8 of this dissenting opinion; the facts surrounding this case, like those in Sartain, reveal that

the defendants’ utterances were merely part and parcel

of harassing conduct. As the record amply demonstrates, the parties have been embroiled in an emotionally-charged and very private dispute in which, as the

trial court put it, ‘‘[t]wo sets of basically decent people

found themselves in conflict and involved in a series

of mutually antagonistic events because of a tragic

event . . . .’’ These accusations occurred during confrontations with the plaintiff’s friends, and to a stranger

during the course of following the plaintiff—conduct
the majority concedes is not subject to the first amendment’s protections. Indeed, unlike in the three cases

cited by the majority, the fact that the utterances in the

present case were not directed to the public at large

belies the claim that this speech is of public concern.

See Obsidian Finance Group, LLC v. Cox, 740 F.3d

1284, 1292 (9th Cir.) (public nature of allegation against

appointed bankruptcy trustee militated in favor of conclusion that allegation was of public concern), cert.

denied, U.S. 134 S. Ct. 2680, 189 L. Ed. 2d 223

(2014); Flamm v. American Assn. of University

Women, 201 F.3d 144, 150 (2d Cir. 2000) (‘‘[that the

challenged utterance] was also distributed to a public

audience with an interest in issues of gender discrimination . . . [and] mailed, at a minimum, to hundreds of

[the plaintiff’s] peers and fellow professionals nationwide . . . [makes it more likely that the utterance was]

clearly intended to, and can reasonably be viewed as

an attempt to, influence public discourse and affect the

public response to incidents of gender discrimination’’);

Johnson v. Ryan, 186 Wash. App. 562, 575, 346 P.3d

789 (2015) (‘‘there should be some degree of closeness

between the challenged statements and the asserted

public interest’’ [internal quotation marks omitted]).

I would conclude that the defendants’ private accusations of murder were ‘‘solely in the individual interest

of the speaker . . . [and therefore warrant] no special

protection . . . .’’ (Citation omitted.) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

762, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985) (plurality

opinion). It is worth stressing that these private accusations forming the basis of the judgment lie in stark

contrast to the defendants’ other, protected speech not

forming the basis of the judgment: namely, the defendants’ speech that brings to the public’s attention in

the Waterbury Observer and on television the authorities’ lack of diligence in pursuing the case in light of

allegations that the plaintiff was involved in a love triangle. But far from the context of the defendants’ legitimate attempts to exercise their free speech rights, and,

instead, just as in Sartain, the context of the statements

forming the basis of the judgment evinces a purely

private conflict that simply cannot be attributed to any

exposition on a public matter. See also Connick v.

Myers, supra, 461 U.S. 148 n.8 (‘‘[A] questionnaire not

otherwise of public concern does not attain that status

because its subject matter could, in different circumstances, have been the topic of a communication to the

public that might be of general interest. [W]hether [the

utterances] . . . could be matters of public concern

is beside the point—it does not answer whether this

[utterance] is such speech.’’ [Emphasis in original.]).

The majority’s extension of the first amendment’s

protections to the defendants’ defamatory statements

has serious consequences, namely, a shift in the burden

of proof as to the truth or falsity of the alleged defama-
tory statement from the defendants to the plaintiff. The

burden of proof is often dispositive of actions for defamation, especially in cases involving defamatory statements difficult to prove or disprove, often the same

cases in which the parties present scant evidence. See

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,

776–78, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986) (‘‘the

burden of proof is the deciding factor only when the

evidence is ambiguous’’ and although ‘‘requiring the

plaintiff to show falsity will insulate from liability some

speech that is false, but unprovably so . . . [this rule

is justified in order] to protect speech that matters’’

[internal quotation marks omitted]). Without a reasoned

legal conclusion that the defendants’ speech is of public

concern, affording the defendants protection under the

first amendment serves only to shield false criminal

accusations made by one private party against another

private party. Such a result is inconsistent with first

amendment jurisprudence. Cf. Wolston v. Reader’s

Digest Assn., Inc., 443 U.S. 157, 168–69, 99 S. Ct. 2701,

61 L. Ed. 2d 450 (1979) (rejecting contention that ‘‘any

person who engages in criminal conduct automatically

becomes a public figure’’ because ‘‘[t]o hold otherwise

would create an ‘open season’ for all who sought to

defame persons convicted of a crime’’); see Gertz v.

Robert Welch, Inc., supra, 418 U.S. 341 (‘‘[w]e would

not lightly require the [s]tate to abandon [the underlying

state interest in compensating individuals for harm

inflicted on them by defamatory falsehoods]’’). This

result is also inconsistent with our classification of such

statements as defamatory per se, which operates to

lighten the burden on a plaintiff by presuming injury

to a plaintiff’s reputation. See Gaudio v. Griffin Health

Services Corp., 249 Conn. 523, 551, 733 A.2d 197 (1999).

An inquiry into the content, context, and form of the

defamatory statements at issue, the harassing context

of which is discussed at length previously in this dissenting opinion, leads me to conclude that the defamatory statements at issue in the present case are not

speech of public concern and, therefore, are not entitled

to protection under the first amendment. The defendants intended to convey no protected message on any

matter of concern to the public and, therefore, affirming

the judgment in the present case chills no protected

speech. The constitutional guarantees of the first

amendment ‘‘ ‘can tolerate sanctions against calculated

falsehood without significant impairment of their essential function.’ [Time, Inc. v. Hill, 385 U.S. 374, 389–90,

87 S. Ct. 534, 17 L. Ed. 2d 456 (1967)]. Indeed, [f]irst

[a]mendment protections must function in balance with

competing interests protected by state tort law, among

which the sanctity of reputation . . . [is] seminal to

our jurisprudence.’’ Krajewski v. Gusoff, 53 A.3d 793,

808 (Pa. Super. 2012), appeal granted, 621 Pa. 117, 74

A.3d 119, appeal dismissed, 624 Pa. 224, 84 A.3d 1057

(2014).
Because I would conclude that the plaintiff’s defamation claim does not implicate the first amendment—

because it involves a private plaintiff, private defendants, and a matter of purely private concern—I would

apply the common law of defamation in the present

case and, accordingly, I would not have shifted the

burden of proving falsity to the plaintiff. Without this

shift, I would conclude that the plaintiff met her burden

of proving a common-law defamation claim by a preponderance of the evidence. I would then conclude that

the defendants neither pleaded nor proved the commonlaw affirmative defense of truth by a preponderance of

the evidence. See Cweklinsky v. Mobil Chemical Co.,

267 Conn. 210, 228–29, 837 A.2d 759 (2004) (‘‘under

the common law, truth is an affirmative defense to

defamation . . . the determination of the truthfulness

of a statement is a question of fact for the jury’’ [citation

omitted]). Finally, I would conclude that the plaintiff

established entitlement to punitive damages in the present case.

I begin with the trial court’s decision, which correctly

set forth the common law of defamation, and review

the record to determine whether the plaintiff proved a

prima facie case. The majority appears to concede, and

I agree, that the plaintiff proved a common-law prima

facie case for defamation, not disputing that the defendants’ statements are properly classified as defamatory

per se because they charge crimes punishable by imprisonment. But the inquiry into whether the defendants

proved the truth of the defamatory statements as an

affirmative defense is rendered more difficult because

the defendants neither pleaded nor proved this defense.

Indeed, at trial, the defendants decided to deny calling

the plaintiff a murderer, instead of justifying having

made those utterances by pleading and proving their

truth. The defendants’ failure to proffer evidence that

the plaintiff murdered Bill is therefore unsurprising, as

that issue was raised forthe first time on appeal. Even if

the defendants had properly pleaded, and subsequently

attempted to prove, the truth of their defamatory utterances, the defendants would have needed to show that

the plaintiff was a murderer by a preponderance of the

evidence, meaning that ‘‘the evidence, considered fairly

and impartially, induce[s] in the mind of the trier a

reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true.’’

(Internal quotation marks omitted.) Gaudio v. Griffin

Health Services Corp., supra, 249 Conn. 535 n.8. On

appeal of ‘‘a defamation case brought by an individual

who is not a public figure, the factual findings underpinning a trial court’s decision will be disturbed only when

those findings are clearly erroneous, such that there is

no evidence in the record to support them.’’ Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628–29,

969 A.2d 736 (2009).
A review of the memorandum of decision demonstrates that the defendants failed to prove that the plaintiff murdered Bill by a preponderance of the evidence

and that the trial court implicitly found as such. By

repeatedly referring to the statements as ‘‘defamatory,’’

the trial court was implicitly finding that the defendants

had not proven the statements to be true. Our case

law, however imprecisely, has at times used the term

‘‘defamatory’’ as a synonym for ‘‘false’’ in defamation

actions, as it represents the legal conclusion that a

prima facie case has been presented. See, e.g., Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 639;

Woodcock v. Journal Publishing Co., 230 Conn. 525,

534, 543, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149,

115 S. Ct. 1098, 130 L. Ed. 2d 1066 (1995); Cweklinsky

v. Mobil Chemical Co., supra, 267 Conn. 228. Even our

model jury instructions define a ‘‘defamatory statement’’ as ‘‘a false communication . . . .’’ Connecticut

Civil Jury Instructions (4th Ed. 2008) § 3.11-1, available

at http://www.jud.ct.gov/JI/civil/part3/3.11-1.htm (last

visited October 19, 2015). The trial court reinforced this

implicit finding in its discussion of actual malice, in

which it stated that the defendants presented absolutely

no evidence that the plaintiff murdered Bill: ‘‘We do

not have a case of mere negligent utterances not based

on fact but on suspicion and conjecture.’’

Because I read the trial court’s thorough memorandum of decision as setting forth a finding that the defendants did not prove truth of their assertion that the

plaintiff was a murderer, I now review the record to

determine whetherthat factual finding is clearly erroneous. The defendants never alleged, either in their pleadings or at trial, that the plaintiff murdered Bill. They

neither attempted to, nor succeeded in, presenting any

evidence that could have led the trial court to conclude

that it was more probable than not that the plaintiff

murdered Bill. My own review confirms that the record

is, in fact, devoid of any such evidence; there is no

body, no weapon, and no evidence of foul play. The

plaintiff, her friends, and all of the other witnesses at

trial made no statements accusing the plaintiff of Bill’s

murder. Even after having hired a private detective, the

defendants offered nothing other than conjecture to

support their claim. That the plaintiff declines to speak

to the police on advice of counsel does not inject clear

error into the trial court’s findings, nor does it establish

that it is more probable than not that the plaintiff murdered Bill. At most, this evidence might suggest that,

according to the majority, ‘‘the plaintiff, at the very

least, knows more than she is saying about Bill’s disappearance.’’ But that is a far cry from establishing that the

plaintiff is a ‘‘murderer,’’ which is the actual defamatory

statement forming the basis of the judgment in the

present case. Because there is no competent evidence

in the record to contradict the trial court’s implicit

finding that the defendants failed to prove that the plain-
tiff murdered Bill, the trial court’s finding that the defendants failed to prove the truth of the defamatory

statements is not clearly erroneous. Accordingly, I

would affirm the judgment of the trial court on this

count.

This does not end the inquiry, however, because the

plaintiff sought and was awarded punitive damages.

Because, in my view, this case lacks first amendment

significance, and in light of the standard of review, I

would conclude that the plaintiff proved her entitlement

to common-law punitive damages. The trial court and

the Appellate Court appropriately concluded that, to be

awarded punitive damages in a defamation case lacking

first amendment significance, the common law of damages applies. See Gleason v. Smolinski, supra, 149

Conn. App. 312–14, citing DeVito v. Schwartz, 66 Conn.

App. 228, 236, 784 A.2d 376 (2001); see also Johnson

v. Johnson, 654 A.2d 1212, 1215–16 (R.I. 1995).

Common-law ‘‘[p]unitive damages are awarded when

the evidence shows a reckless indifference to the rights

of others or an intentional and wanton violation of those

rights.’’ Vandersluis v. Weil, 176 Conn. 353, 358, 407

A.2d 982 (1978). ‘‘If the evidence discloses that a defendant was recklessly indifferentto the rights of a plaintiff,

an actual intention to do harm to the plaintiff is not

necessary.’’ Berry v. Loiseau, 223 Conn. 786, 811, 614

A.2d 414 (1992). ‘‘[T]he trial court has broad discretion

in determining whether damages are appropriate. . . .

Its decision will not be disturbed on appeal absent a

clear abuse of discretion.’’ (Internal quotation marks

omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d

1009 (2008). In the present case, the trial court concluded ‘‘when all is said and done, [the plaintiff] was

subject to intentional infliction of emotional distress.’’

Moreover, having chosen a trial strategy of denying

having made the defamatory statements instead of justifying having made them, the defendants even offered

no self-serving testimony to the effect that they actually

believed the plaintiff murdered Bill, testimony the trial

court could have easily utilized in assessing whether

punitive damages were warranted. Cf. St. Amant v.

Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed.

2d 262 (1968) (‘‘[i]t may be said that [the test for actual

malice] . . . permits the issue to be determined by the

defendant’s testimony that he published the statement

in good faith and unaware of its probable falsity’’); see

also Gambardella v. Apple Health Care, Inc., supra, 291

Conn. 641–42 (‘‘The fact that the defendants continued

to assert that they believed that the plaintiff had [committed a crime] was not dispositive of the issue of

whether they had known that their statements were

false or recklessly disregarded their truth. A trial court

must evaluate a defendant’s testimony, including

whether there are grounds to support it, and is not

constrained simply to accept a defendant’s assertion

that he did not know that his statement was false.’’).
In light of the exhaustive evidence of the defendants’

hostility and spite, I would conclude that the trial court’s

decision to award punitive damages was not an abuse

of discretion and, therefore, affirm the judgment of the

trial court in full.

Although I would conclude that the first amendment

does not protect the defendants’ accusations of murder,

because the majority has applied the first amendment

to the present case, I briefly address several concerns

I have with the majority’s analysis.

First, I am not convinced that the majority should

even have reached the issue of whether the plaintiff

proved falsity as part of a prima facie case for defamation concerning speech of public concern. The majority

acknowledges that neither party asked us to reach this

issue, stating that ‘‘this claim was not preserved in the

trial court’’ and ‘‘we exercise our discretion to review

it . . . despite the defendants’ failure to ask that we

do so . . . .’’ (Citation omitted.) The defendants only

asked that we review whetherthe plaintiff proved actual

malice so that we would reverse the award of punitive

damages. See Cox v. Galazin, 460 F. Supp. 2d 380,

388 (D. Conn. 2006) (‘‘If the plaintiff were a private

individual and the statements concerned a purely private matter, the plaintiff would not need to show actual

malice in order to establish liability. Further, in such a

situation, if the statements constituted defamation per

se, the plaintiff would also not need to prove actual

injury and could recover presumed general damages.’’);

Gleason v. Smolinski, supra, 149 Conn. App. 312–14

(affirming award of punitive damages).

Second, having reached the issue of falsity despite

the failure of any party to request that we do so, and

even assuming arguendo that the defendants’ defamatory statements were speech of public concern, thereby

shifting the burden to the plaintiff to prove that she did

not murder Bill, the majority does not explain by what

burden of persuasion the plaintiff must prove her innocence on remand. Though the majority concludes that

a new trial is warranted because, in its view, the trial

court failed to conduct a falsity analysis, the majority

does no more than note that there is a ‘‘debate as to

whether the element of falsity must be established by

clear and convincing evidence or by a preponderance

of the evidence.’’ Harte-Hanks Communications, Inc.

v. Connaughton, 491 U.S. 657, 661 n.2, 109 S. Ct. 2678,

105 L. Ed. 2d 562 (1989). Because the proper burden

of persuasion is likely to arise on remand; see Weaver

v. McKnight, 313 Conn. 393, 417–18, 97 A.3d 920 (2014);

in my view, the majority should have set forth the burden of persuasion a private plaintiff must meet in proving the falsity of a defamatory statement of public

concern.12

Lastly, I respectfully disagree with the majority’s conclusion that the plaintiff failed to prove by clear and
convincing evidence that the defendants uttered their

defamatory statements with actual malice. At the outset, I note that the defamatory statement for which the

majority appears to test the record is the statement ‘‘to

other people that the plaintiff, at the very least, knows

more than she is saying about Bill’s disappearance.’’ I

respectfully disagree. The majority’s characterization

of the defamatory statement at issue is a far cry from

the actual defamatory statement at issue in the present

case—‘‘murderer’’—forming the basis of the judgment.

In my view, to properly address the issues in the present

case, the majority must test the record to determine

whether the defendants acted with actual malice in

accusing the plaintiff of murdering Bill. As the trial

court noted, ‘‘[e]specially in a case like this, where the

pain and emotions are so apparent and understandable,

it is important that things be gotten right so as not to

add to the pain and suffering of what to the court at least

are sympathetic parties caught in a difficult maelstrom.’’

Assuming that the majority’s analysis nevertheless

addresses whether the plaintiff proved that the defendants acted in reckless disregard for the truth of

whether she murdered Bill, I turn now to the majority’s

analysis. The majority accurately sets forth the substantive law and standard of review for actual malice in a

defamation case. The majority agrees that ‘‘[t]he proper

inquiry is whether a defendant believes, honestly and

in good faith, in the truth of his statements . . . .’’

Gambardella v. Apple Health Care, Inc., supra, 291

Conn. 638. It also agrees that ‘‘we defer to the trier’s

findings with respect to, for example . . . whether [a

party] acted in good faith in publishing a statement later

deemed defamatory.’’

In the present case, the trial court found as follows:

‘‘The statements referenced . . . to [Melissa] DePallo

and [Fran] Vrabel and the man at the gym, in the court’s

opinion meet the requirements of defamation as set

forth in [Cweklinsky v. Mobil Chemical Co., supra, 267

Conn. 217].

‘‘The statements to DePallo and Vrabel say directly

[that the plaintiff] was a murderer or involved in the

murder of Bill . . . . The statements made to DePallo

and Vrabel were obviously ‘published’ to them. The

statement made to the man at the gym was published

to him. In all these situations [the plaintiff] was identified to the listener and since [the plaintiff] was being

accused of murder or involved with murder the defamations are per se accusations since murder clearly

involves a crime of ‘moral turpitude’ or ‘infamous penalty.’ We do not have here mere opinion—[the plaintiff]

was said to be a murderer or involved in a situation

where murder occurred.

‘‘The statements if made were made with actual malice under the law as the court interprets it. There was

reckless disregard of whether the statements that were
alleged to have been made were truthful. We do not

have a case of mere negligent utterances not based on

fact but on suspicion and conjecture.’’ I agree with the

trial court. In light of the ample evidence demonstrating

the defendants’ hostility and spite, which has been discussed at length previously in this opinion, I would

conclude that the plaintiff established by clear and convincing evidence that the defendants recklessly disregarded whether their statements were truthful.

Therefore, I would affirm the award of punitive

damages.

For the reasons set forth previously in this opinion,

I do not view the present case as one implicating the

first amendment. Consequently, I would affirm the judgment of the Appellate Court in all respects. Therefore,

I respectfully dissent.

1

I note that, although John Murray was also named as defendant in the

present case, the claims made against him are not at issue in the present

appeal. See footnote 3 of the majority opinion. For the sake of simplicity,

I refer to Janice Smolinski and Bell collectively as the defendants and

individually by name.

2 Although B and B Transportation, Inc., was also a plaintiff in the underlying action, it is not a party to the present appeal. See footnote 2 of the

majority opinion. I therefore refer to Gleason as the plaintiff.

3 For the sake of consistency with the majority opinion, I hereinafter refer

to William Smolinski, Jr., as Bill. See footnote 1 of the majority opinion.

4 The following colloquy during oral argument before this court evinces

the defendants’ concession:

‘‘The Court: Didn’t the trial court find that your client had said that the

reason that she was putting up these posters was to ‘break’ the plaintiff to

get her to cooperate? . . .

‘‘[The Defendants’ Counsel]: It is a finding, Your Honor, but I don’t think

it’s supported by the record. . . .

‘‘The Court: The trial court found that the defendants were posting the

‘murdered’ posters on the dead end road where the plaintiff was staying,

they were found to have specifically targeted the plaintiff’s home and the

homes where she stayed. So you’re asking us to find that all . . . of those

[findings] were clearly erroneous . . .? Did you specifically ask us to do that?

‘‘[The Defendants’ Counsel]: Your Honor, I don’t think that it matters that

they’re targeted. . . .

‘‘The Court: I understand . . . but you seem to be saying . . . that the

[trial] court was factually incorrect . . . as to where [the posters] were

being tacked up and the question about whether [the defendants] was trying

to ‘break’ her.

‘‘[The Defendants’ Counsel]: The issue of trying to ‘break’ her . . . is one

of semantics. I think if you look at the total record, the record just doesn’t

support that my client[s] had any axe to grind against [the plaintiff]. My

client[s] [were] trying to replace posters in an effort to find [Bill] . . . .

And so . . . whether the trial court’s opinion is clearly erroneous is irrelevant. . . .

‘‘The Court: Did you ask us to make a finding that all of these findings

are clearly erroneous? Or are you saying that, even with these factual findings, you win because targeting shouldn’t matter?

‘‘[The Defendants’ Counsel]: The latter, Your Honor.’’

5 The trial court, instead, noted that an incident during which the plaintiff

ripped down posters directly in front of the defendants, leading to a physical

confrontation, merely factored in to reducing the amount of damages she

could be awarded because the plaintiff played a part in escalating tensions

in that specific moment. In addition, the majority also finds that ‘‘it is

undisputed that all of the posters were placed on or adjacent to public

roadways,’’ even though it admits that Janice Smolinski was arrested for

trespass and disorderly conduct for placing the posters on private property

at the plaintiff’s workplace.

6 The majority asserts that it ‘‘find[s] instructive the New Hampshire

Supreme Court’s recent decision in Keene’’ and that ‘‘[g]uided heavily by

this . . . decision, which considered similarly targeted and harassing con-
duct, we conclude that a substantial portion of the defendants’ conduct that

the trial court found to constitute the intentional infliction of emotional

distress was, in fact, protected by the first amendment. This is particularly

so, given that the trial court’s finding that it was solely intended to harass

and ‘break’ the plaintiff did not consider whetherthose actions were intended

to persuade the plaintiff with regard to a matter of public concern as in

Keene, rather than merely torture her gratuitously with regard to a purely

private matter.’’ (Footnote omitted.) I disagree. First, as I have explained

previously in this opinion, the trial court did consider whether the defendants’ conduct was intended to persuade her with regard to a matter of

public concern, and in fact, concluded that the defendants’ conduct was

‘‘not as the result of a general effort by the [defendants] to find their son

and brother but part of an effort to break her.’’ As the trial court determined,

the defendants’ conduct was not part of a public concern regarding missing

persons, but it was about forcing a confession out of a private individual.

In contrast, the conduct in Keene was intended to convince government

actors to quit their job because the protestors believed that parking enforcement was not a legitimate role for government. As the trial court in the

present case concluded ‘‘it would be an unacceptable restriction on free

speech and even hamper police investigations if people did not have a right

to bring [facts relevant to persons of interest in an investigation] to the

police’s or even [the] public’s attention,’’ but harassing a private individual

to hound a confession from the private individual is not a matter of public

concern and free speech is not implicated.

7 That the context of the speech so clearly demonstrated its bona fide

attempt to convey a protected message to the public has led commentators

to wonder why the United States Supreme Court granted certiorari in the

first instance. E.g., A. Brownstein & V. Amar, ‘‘Afterthoughts on Snyder v.

Phelps,’’ 2011 Cardozo L. Rev. De Novo 43, 43–44 (‘‘From a scholarly and

professional perspective . . . [Snyder] added little to the development of

free speech doctrine. . . . [O]ne can only wonder why the [c]ourt thought

it appropriate to grant review in this matter in the first place. . . . [W]e

think the [c]ourt may have spent more ink than was necessary on the

question of whether the content of [the defendant’s] speech constituted a

matter of public or private concern. Other factors really did the lion’s share

of the analytic work in this case. . . . The protest was directed to the public

at large. This was public discourse, not speech exclusively, or at least

primarily, directed at a target audience. If all of these conditions are satisfied,

it is not clear to us that classifying speech as a matter of public or private

concern is terribly important.’’ [Footnotes omitted.]); A. Caplan, ‘‘Free

Speech and Civil Harassment Orders,’’ 64 Hastings L.J. 781, 823 (2013) (‘‘[the

court’s] focus [on the content of the speech] was largely irrelevant to the

outcome of the case’’).

8

I briefly note that no other cases cited by the majority support its conclusion. With respect to the cases offered for the proposition that the reporting

of crime is a matter of public concern, some are inapposite to the present

case because the speakers were members of the media fulfilling their role

as the press in reporting the existence oftruthful facts. See CoxBroadcasting

Corp. v.Cohn, supra, 420 U.S. 492 (broadcast company’s broadcast oftruthful

facts surrounding crime in light of ‘‘a society in which each individual has

but limited time and resources with which to observe at [firsthand] the

operations of his government, [and therefore] he relies necessarily upon

the press to bring to him in convenient form the facts of those operations’’);

Best v. Berard, 776 F. Supp. 2d 752, 757–58 (N.D. Ill. 2011) (broadcast

company’s broadcast of plaintiff’s arrest analogous to ‘‘police blotter’’);

Dumas v. Koebel, 352 Wis. 2d 13, 29–30, 841 N.W.2d 319 (App. 2013) (news

broadcast intended to inform public about bus drivers’ criminal histories

and criticize school district’s hiring practices). Others are inapposite because

the statements at issue criticized public officials in the conduct of their

public business. See Shoen v. Shoen, 292 P.3d 1224, 1230 (Colo. App. 2012)

(statements ‘‘related to a matter of public concern because they addressed

[the speaker’s] views about the adequacy of the investigation by public law

enforcement officers when unanswered questions remained’’); Wiemer v.

Rankin, 117 Idaho 566, 571, 790 P.2d 347 (1990) (‘‘[t]he article addressed the

performance of the prosecutor’’). Others predicated the first amendment’s

protections on bases not relevant to the present case; see Hobbs v. Pasdar,

682 F. Supp. 2d 909, 927–28 (E.D. Ark. 2009) (plaintiff was limited purpose

public figure); Miles v. Ramsey, 31 F. Supp. 2d 869, 875 (D. Colo. 1998)

(article was matter of public concern because murder was national ‘‘media

spectacle’’); Holloway v. American Media, Inc., 947 F. Supp. 2d 1252, 1261
n.8 (N.D. Ala. 2013) (plaintiff was public figure); or performed incomplete

analyses. See Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1292

(9th Cir.) (no discussion of content, context, and form), cert. denied,

U.S. , 134 S. Ct. 2680, 189 L. Ed. 2d 223 (2014).

9 Nevertheless, because the majority remands the case, I am convinced

that the trial court will have no trouble in finding the intentional infliction

of emotional distress by a preponderance of the evidence.

10 The majority concedes that ‘‘an accusation of criminal conduct [may

be] topically [on] a matter of public concern . . . [which] is a significant,

but not dispositive, factor in determining whether speech or conduct is

constitutionally protected for purposes of tort liability. Indeed, should an

accusation be false, the first amendment does not foreclose liability under

a defamation theory in a well pleaded and proven case.’’ See footnote 26

of the majority opinion. The majority also cites to a Mississippi case that,

with facts largely identical to the facts of the present case, evinces the

requirement that reviewing courts must undertake the relevant first amendment inquiry before affording accusations of criminal conduct the protections of the first amendment. See Sartain v. White, 588 So. 2d 204, 213

(Miss. 1991) (conducting content, context, and form inquiry to conclude

that defamatory accusations of various crimes are generally matter of public

concern but not in specific context of acrimonious neighbor dispute).

11 The majority asserts that ‘‘the Mississippi Supreme Court’s decision in

Sartain is a jurisprudential odd duck, which arose from a neighborhood

dispute wherein defamation allegations arose from one party’s accusations

in numerous public fora, such as tirades and letters to public officials, that

her neighbors were murderers, robbers, and terrorists.’’ See footnote 33 of

the majority opinion. I disagree that Sartain is a ‘‘jurisprudential odd duck’’

and, instead, assert that it properly applied the law to allegations made in

a personal dispute between families in a neighborhood. Similarly, the present

case arose from a personal dispute between two families that knew each

other. Like the dispute in Sartain, the accusations involved in the present

case did not relate to the actions of government officials, but were personal

attacks designed to elicit a response from a private individual.

12 Though I would not reach the issue, I would also conclude that, had

she retained the burden of persuasion to prove that she did not murder Bill

ab initio, the plaintiff met this burden under any standard. In my view, the

plaintiff’s testimony that she was unaware of Bill’s disappearance until three

days after it happened, as well as the trial court’s crediting her testimony

in other contexts and the lack of any competent evidence to the contrary,

is sufficient to establish that she did not murder Bill.